1. This decision is in respect of the “Prosecution’s
Motion for Relief Pursuant to Rule 65ter(F)”,
filed on 28 September 2005 (“Motion”). By this Motion, the Prosecution submits that the pre-trial briefs
filed by the Defence of the three Accused in the
present case do not comply with Rule 65ter(F) of
the Rules of Procedure and Evidence (“Rules”) and
requests an order from the Chamber requiring the
filing of supplementary briefs. On 5 October 2005,
the Defence filed a “Joint
Defence Response: Prosecution’s Motion for Relief Pursuant
to Rule 65ter(
F)” (“Joint Response”), requesting that the Chamber
dismisses the Motion or, should the Chamber decline
to do so, that the Prosecution be ordered to submit
a specific list of factual and legal issues allegedly
not in compliance with Rule 65ter
(F), and that the Defence be granted sufficient time
to comply with any order of the Chamber.

2. The Prosecution filed its pre-trial brief pursuant
to Rule 65ter(E) on 29 August 2005. On 23 September
2005, the Defence for the Accused Mile Mrksic, Miroslav
Radic and Veselin Sljivancanin filed their respective
pre-trial briefs pursuant to Rule
65ter(F). The Chamber notes that it appears
from the submissions of the parties that on 2 September 2005,
the Defence for the three Accused submitted a list
of 67 proposed agreed facts, to which, at the date
of this decision, the Prosecution has not yet responded.
The proposed list is not available to the Chamber,
as a result of which no further inference can be drawn
as to the nature of the Defence cases of each of the
Accused.

DISCUSSION

3. Rule 65ter of the Rules imposes different
obligations upon the Prosecution and the Defence with
respect to pre-trial filings. Under Rule 65ter(E),
the Prosecution is required to file a detailed pre-trial
brief, “including, for
each count, a summary of the evidence which the Prosecutor
intends to bring regarding the commission of the alleged
crime and the form of responsibility incurred by the
accused…”. By contrast, Rule 65ter(F) only
requires the Defence to file a pre-trial brief addressing
the factual and legal issues and setting out, “(i)
in general terms, the nature of the accused’s defence;
(ii) the matters with which the accused takes issue
in the Prosecutor’s pre-trial brief; and (iii) in
the case of each such matter, the reason why the
accused takes issue with it”. Another
Trial Chamber has observed that the Defence pre-trial
brief is primarily intended as a tool to set some
general boundaries for the trial prior to its commencement
and to identify potential areas of agreement between
the parties.1
The Defence is not required to produce at this stage
details as to the evidence it intends to adduce in
the course of its case. Rather, pursuant to Rule 65ter(G),
such information is required to be provided after the
conclusion of the Prosecution case and before the commencement
of the Defence case.

4. In support of its Motion for relief, the Prosecution
first submits that, with respect to legal issues
relevant to this case, the Defence have merely repeated
and simply denied the application of the articles
of the Statute forming the basis of the charges
against the Accused. A review of each of the three
Defence pre-trial briefs reveals, however, that
the position of each Defence as to the elements of
each crime and each form of liability is set out,
and where relevant, the basis for such position.
This is, in the view of the Chamber, sufficient for
the present purposes.

5. The Prosecution further submits that the factual
issues set forth in each of the Defence pre-trial
briefs relate to peripheral issues and remain thoroughly
unclear and inadequate. The Prosecution does not
further specify its submissions in this respect.

6. The Defence for the Accused Mrksic essentially
sets out in its pre-trial brief that it contests
all allegations put forward by the Prosecution, and
more specifically the military and political context
in which the events are alleged to have taken place
and the role the Accused Mrksic is said to have played
in these events. With respect to the context of
the events, the Defence for the Accused Mrksic contends
that the events charged in the Indictment were not
part of an attack against the civilian population.2 However, while
the Defence for the Accused Mrksic provides a relatively
detailed description of what it characterised as
the context of the events, including a discussion
of some of the activities of the Croatian forces
at the time, the Defence’s position as
to whether there was an armed conflict at the time
relevant to this Indictment remains unclear. The
Defence will be ordered to supplement its pre-trial
brief in this respect. Concerning the role and responsibility
of the Accused Mrksic, the Defence’s
position appears to be that the Accused did not order
the transfer of individuals from the Vukovar hospital
on 20 November 1991 and had no knowledge of this
event or of the events occurring subsequently.3
On the basis of the pre-trial brief, the case of the
Defence for the Accused Mrksic appears to be that
the Vukovar hospital, as well as the Ovcara farm, were
under the responsibility of the 80th Motorised Brigade
rather than the Guards Motorised Brigade.4 Further, throughout the
time relevant to the charges in the Indictment, the
Accused Mrksic was “present
at the command post of his unit in Negoslavci”.5
For the purposes of Rule 65ter(F), while the
general nature of the Defence of the Accused Mrksic
with respect to his role in the events charged, as
described above, is not fully set out, it cannot be
said that there has been a failure to comply with
the Rule.

7. That being so, the Chamber observes that there
is no discussion in the pre-trial brief filed on
behalf of the Accused Mrksic concerning the position
of the Defence as to the events underlying the charges
in the Indictment, events which are often colloquially
referred to as the “crime base”. In principle, the
Chamber would be inclined in such circumstances
to order the Defence for the Accused Mrksic to file
a supplementary brief dealing with this particular
aspect of its case. Other matters currently before
the Chamber are, however, of relevance to this determination.
In particular, by decision of the pre-trial Judge,
the Defence has been ordered to file, by 19 October 2005
and pursuant to Rule 94bis(B) of the Rules,
a notice indicating whether it accepted the reports
of several expert witnesses whom the Prosecution
intends to call at trial, including the reports of
two forensic pathologists concerning the autopsy
of the individuals exhumed from the Ovcara grave.6
The consideration of the Defence as to whether it can
accept one or more of the expert reports, and whether
it should cross-examine or challenge the qualifications
of one or more of the expert witnesses, will be of
material relevance to the issue whether the Defence
contests the events forming the crime base of this
case. In the view of the Chamber, it is therefore
premature, at this stage, to order the Defence for
the Accused Mrksic to file a supplementary brief on
these particular matters.

8. In its pre-trial brief, the Defence for the Accused
Radic first submits that the events charged in the
Indictment did not occur in the context of a widespread
or systematic attack against the civilian population,
as required for Article 5 of the Statute to be applicable.7
It is unclear from the brief, however, whether the
Defence for the Accused Radic contests the existence
of an armed conflict at the time relevant to the Indictment. The pre-trial brief merely refers to activities
by the “Corps of National Guards
” and the “defenders of the city of Vukovar” preventing
the JNA from lifting the blockade imposed on JNA barracks
in the city.8
No clear conclusion, however, as to the position of
the Defence on the existence of an armed conflict,
can be drawn from this reference. The Defence of the
Accused Radic will be ordered to supplement its pre-trial
brief in this respect. Concerning the role of the
Accused Radic, the Defence submits in its pre-trial
brief that the Accused was not involved in the commission
of any of the crimes charged in the Indictment. The
position of the Defence appears to be that the Accused
Radic was not a member of any joint criminal enterprise
in relation to the events charged and that he had
no knowledge of any such enterprise.9
The Defence provides a more detailed position with
respect to the offences of torture and extermination
by stating that the Accused did not have the requisite mens
rea.10 Finally,
while it appears that the Defence may contend at
trial that the Accused Radic was not the superior
of the alleged perpetrators,11 this
is in apparent conflict with the Defence’s acceptance
of paragraph 158 of the Prosecution’s
pre-trial brief.12 This should be
clarified by the Defence of the Accused Radic. Subject
to these matters and the comment to follow concerning
the crime base, for the purposes of Rule 65ter
(F), the Chamber is satisfied that the general nature
of the Defence and the contested factual issues relating
to the role of the Accused Radic have been adequately
set out in the pre-trial brief. However, the considerations
detailed above in relation to the position of the
Defence for the Accused Mrksic as to the crime base
apply equally with respect to the Defence for the
Accused Radic.

9. The Defence for the Accused Sljivancanin essentially
advances in its pre-trial brief that the Accused
was not involved in any way in the commission of
the crimes charged in the Indictment. It is the
Defence’s case that the Accused Sljivancanin
did not have knowledge of the existence of, or participate
in, any joint criminal enterprise at the time relevant
to the Indictment, nor was he aware of any plan
to commit any of the alleged crimes.13
A further contention in relation to the role of the
Accused Sljivancanin is that he did not issue any
order connected in any way with the commission of the
crimes charged.14 Finally, the Defence submits
that at the time relevant to the Indictment, the Accused
Sljivancanin did not exercise command or authority
over any of members of the Serbian forces.15
More specifically, it is submitted that the Accused
Sljivancanin was not the
de jure or de facto commander of the units
allegedly involved in the commission of the crimes,
namely the Territorial Defence of the Serbian Autonomous
District and of the Republic of Serbia, and other
volunteer and paramilitary units.16 On the basis of the pre-trial
brief, the position of the Defence appears to be that
on 19 and 20 November 1991, the Accused Sljivancanin
was not present at the Ovcara farm17
and was performing his regular duties as security officer
of the Guards Motorised Brigade.18 Subject to what follows, the general nature of the Defence of the Accused
Sljivancanin is generally but adequately set out for
the purpose of Rule 65ter(F). However, the
considerations detailed above in relation to the position
of the Defence for the Accused Mrksic as to the crime
base apply equally with respect to the Defence for
the Accused Sljivancanin. Further, the position of
the Defence for the Accused Sljivancanin remains unclear
as to the alleged existence of an armed conflict and/or
of an alleged attack directed against the civilian
population at the time relevant to these proceedings.
The Defence for the Accused Sljivancanin will be ordered
to supplement its pre-trial brief in this regard.

CONCLUSION

FOR THE FOREGOING REASONS and PURSUANT TO Rules
54 and 65ter
of the Rules,

HEREBY PARTLY GRANTS THE MOTION and ORDERS that:

the Defence for each of the Accused Mrksic and Radic
file a supplement to their pre-trial brief stating
adequately their respective positions as to the
alleged existence of an armed conflict at the time
relevant to the Indictment;

(ii) the Defence for the Accused Radic will also
clarify in its supplement its position with respect
to paragraph 158 of the Prosecution pre-trial brief
and whether the Accused was the superior of the
alleged perpetrators;

the Defence for the Accused Sljivancanin file a supplement
to its pre-trial brief stating its position as to
the alleged existence of an armed conflict and of
an attack against the civilian population at the
time relevant to the Indictment;

(iv) with respect to the cases of each of the three
Accused as to the alleged crime base, the Chamber
reserves its position pending further oral submissions
after the Defence has completed its consideration
of the expert reports now provided by the Prosecution;